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Purchaser of Stolen Firearm Entitled to 'Innocent Possession' Instruction

By William Peacock, Esq. on April 08, 2013 | Last updated on March 21, 2019

Jeffrey Baird thought he got a friendly discount when his friend, who was a weapons collector, offered to sell him a 45 ACP Smith & Wesson revolver — an excellent choice for the money. A quick scan of Internet classifieds yields a price range of around $900. He got it for $200.

The seller, Michael Hatch, claims that he told Baird that the weapons were “hot” and that Baird should’ve known that the guns were out of his price range.

Oh, caveat emptor, Baird.

Baird claims that he was not told that the weapon was stolen when he paid a $100 down payment. He took it to the range, fired it, showed it to another friend, and was greeted with a warning: private cash sales are shady and you should know more about the gun's past before purchasing.

According to Hatch, that same day, Baird showed up and told him about the trip to the range. Hatch warned him that he shouldn't be using a stolen pistol in public and offered to refund his money in exchange for a return of the weapon. Baird returned the gun the following day, two days after the initial purchase.

Baird said that the same conversation happened, but it happened immediately before he returned the pistol (two days after purchasing).

If Baird's story is true, he returned the pistol to the seller immediately after he found out about it's origins. If Hatch's story is true, he waited a day before returning the pistol.

Baird was charged with a violation of 18 U.S.C. § 922 (j) and convicted after his "innocent possession" defense jury instruction was refused by the judge:

Briefness of contact alone does not preclude a finding of possession. But if you find that Jeffery Baird did not know or have reason to know that the firearm was stolen when he first possessed it and that as soon as he learned or had reason to know that it was stolen he took adequate steps to [get] rid of [it] as promptly as reasonably possible, then you may find that he did not knowingly possess a firearm.

The court analogized felon-in-possession cases, in which such a defense is invalid, and cited out-of-circuit cases that reject the defense.

The First Circuit disagreed with the lower court's reasoning: a "criminal defendant is entitled to an instruction on his theory of defense so long as that instruction is legally sound and supported by evidence on the record."

As for the defense theory, § 922(j) is not the legal equivalent of the felon-in-possession crime. While felons are outright prohibited from owning or possessing a gun, private party gun sales are perfectly legal.

Even past felon-in-possession cases have recognized the possibility of innocent possession, such as a father who confiscates his underage child's gun and turns it in to the police. Innocent possession of a stolen weapon is even more likely, and such a defense and jury instruction, therefore, must be available to the defendant.

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